Continuity of Congress

From CRS:

The Constitution provides that in the event of vacancies in the representation from any state, the governor of the affected state shall issue writs of election to fill such vacancies or, in the case of a Senate vacancy, may, if so empowered by state law, make a temporary appointment until an election may be held, in accordance with state law. Plans exist for the protection of the leadership of Congress, evacuation from the seat of government being a primary action. Additional details of these plans and comparable plans of legislative branch agencies, such as the Congressional Budget Office, the General Accounting Office, and the Library of Congress, are not public information. 

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Shortly after the September 11 terrorist attacks, political scientist Norman Ornstein questioned the adequacy of constitutional arrangements concerning the continuity of Congress in the event that many or most of its Members were lost as a result of similar such terrorist action. “A literal reading of the Constitution,” he wrote, “would cast doubt on whether Congress could even convene under those circumstances.” However, noting that, since the Civil War era, both houses of Congress had defined a working quorum “not as a majority of the overall membership of the House and the Senate but as a majority of those duly chosen, sworn and living,” Ornstein thought the situation might be complicated and made more problematic “if there were a substantial number of Members alive but incapacitated.” Moreover, he commented, even if these difficulties were overcome, “for Congress to operate under those circumstances for long — passing sweeping anti-terrorist laws, emergency appropriations and economic recovery measures — would tax its legitimacy, particularly if there were much greater partisan and regional differences among the surviving (and ambulatory) lawmakers than existed in the full House.”

His solution — “to create a small, short-term task force of constitutional scholars and former lawmakers” to make recommendations — was realized with the Continuity of Government Commission, jointly created by the American Enterprise Institute and the Brookings Institution. In June 2003, this panel called for a constitutional amendment to give Congress the power to provide legislatively for the appointment of temporary replacements to fill vacant House seats after a catastrophic attack and to fill temporarily House and Senate seats that are held by incapacitated members. Other proposals included rules changes to ensure that Congress could be effectively reconvened after an attack, and to provide in advance for short-term appropriations for the executive branch if Congress is unable to meet.

During the 108th Congress, several reform measures were introduced, but only a few came to a vote. The House supported (H.Con.Res. 190) establishing a temporary joint committee to study and make recommendations concerning the continuity and authority of Congress during times of crisis. Later, it approved legislation (H.R. 2844) to require the states to hold special elections to fill vacancies in the House in extraordinary circumstances, but rejected, on a 353-63 vote, a proposed constitutional amendment (H.J.Res. 83) authorizing the temporary appointment of House Members, from a preestablished list, as a safeguard against the loss of a majority of Members due to death or incapacity. 

On March 3, 2005, the House, on a 329-68 roll call vote, approved legislation (H.R. 841)requiring the states to hold special elections to fill vacancies in the House inextraordinary circumstances. Two different constitutional amendments (H.J.Res. 26 and S.J.Res. 6) also have been introduced in this regard.

 The House Committee on Appropriations reported an original measure (H.R. 2985) on June 20 making appropriations for the legislative branch for FY2006. It contained a title that included the text of the earlier House-approved continuity in representation bill (H.R. 841). This title remained in the legislation as approved by the House on June 22 on a 330-82 vote, continued through conference deliberations, and became law when the President signed the appropriations measure on August 2, 2005.